Case 1:07-cv-00620-RMC Document 9 Filed 08/06/2007 Page 1 of 11

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

CITIZENS FOR RESPONSIBILITY AND )

ETHICS IN WASHINGTON )
1400 Eye Street, N.W., Suite 450 )
Washington, DC 20005 )
)
Plaintiff, )
) Case No. 1:07CV00620-RMC
v. )
)
CENTRAL INTELLIGENCE AGENCY )
Washington, DC 20505 )
)
Defendant. )
__________________________________________)

REPLY IN SUPPORT OF DEFENDANT’S MOTION FOR OPEN AMERICA STAY

INTRODUCTION

Plaintiffs do not dispute that the Central Intelligence Agency (“CIA”) processes Freedom

of Information Act (“FOIA”) requests on a first-in, first-out basis, or that there are over 500

FOIA requests ahead of Plaintiff’s February 15, 2007 request, or that the median number of days

pending for FOIA requests submitted to the agency is 234 days (down from 349 days at the end

of Fiscal Year 2004), or that Plaintiff’s FOIA request will come up for processing in October

2007. Under case law from this Circuit, those facts – especially in combination with

consideration of Plaintiff’s conduct – more than demonstrate “exceptional circumstances”

justifying the CIA’s requested stay until November 1, 2007. Plaintiff’s argument to the contrary

is based on an irrelevant statistical comparison and a rationalization of its own conduct – neither

sufficient to overcome that demonstration. Accordingly, the Court should grant this motion and

stay this action until November 1, 2007.

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ARGUMENT

Plaintiff acknowledges that the applicable legal standard is as set forth in Defendant’s

Motion for Open America Stay. Compare Plaintiff’s Response to Defendant’s Motion for Open

America Stay (“Pl. Resp.”) at 4 with Defendant’s Motion for Open America Stay (“Def. Mot.”) at

5. Under that standard, the Court “may allow the agency additional time” to process Plaintiff’s

FOIA request if the CIA “demonstrates reasonable progress in reducing its backlog of pending

requests.”1 See 5 U.S.C. § 552(a)(6)(C)(ii). Plaintiff does not dispute the operative facts

demonstrating that the CIA satisfies that standard. See Koch Decl. ¶ 21 (“The CIA’s regulations

provide for the processing of FOIA . . . requests on a first in, first out basis”); id. ¶ 26 (“Since the

conclusion of FY 1997 when the backlog stood at 4,867 cases, CIA has steadily reduced its

backlog to the point that at the conclusion of FY 2006, it had been reduced by over 80 percent to

896 cases.”); id. ¶ 29 (“The CIA has steadily reduced the median number of days that cases in the

backlog have been pending at the end of each fiscal year.”); id. ¶ 35 (“At th[e] time [Plaintiff’s

request was received], the Agency had over 907 FOIA requests in various stages of processing;

of these, approximately 573 currently remain ahead of plaintiff’s . . . .”); id ¶ 31 (“[Plaintiff’s]

request does not demonstrate a ‘compelling need’” for which the CIA “make[s] exceptions to [its

1
Plaintiff’s Opposition does not even address the CIA’s devotion of resources to
declassification review, (Def. Mot. Ex. (Declaration of Scott Koch (“Koch Decl.”)) ¶ 13), another
factor relevant to this Court’s determination. See Center for Public Integrity v. United States
Dept.of State, 2006 WL 1073066, at * 2 (D.D.C., Apr. 24, 2006) (noting that “other
circumstances in addition to FOIA request backlogs may be a basis for finding exceptional
circumstances, including ‘resources being devoted to the declassification of classified material of
public interest’”); Electronic Frontier Found. v. Department of Justice, 2007 WL 1334973, at *4
(D.D.C., May 7, 2007) (concluding that FOIA’s legislative history “clearly contemplate[s] that
other circumstances, such as . . . the amount of classified material . . . [and] the resources being
devoted to the declassification of classified material of public interest . . . are relevant to the
courts’ determination as to whether exceptional circumstances exist”).

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first-in, first-out] rule”). Instead, Plaintiff contends that a stay is not warranted because other

agencies have larger FOIA dockets and Plaintiff’s conduct should not be a factor in this Court’s

decision. That contention, however, is unfounded.

I. THE FOIA DOCKETS OF OTHER FEDERAL AGENCIES ARE NOT

RELEVANT TO THIS COURT’S DETERMINATION.

Plaintiff urges denial of the stay based on a meaningless comparison of the relative sizes

of agencies’ FOIA dockets. See Pl. Resp. at 6 (noting that “as compared to 24 other agencies

who reported to the GAO, the CIA had the eighth fewest number of FOIA requests”). Such a

comparison is uninformative, at a minimum, because it does not account for differences in the

records systems maintained by each agency. For example, as part of its counterintelligence

function, the CIA maintains a decentralized and compartmentalized records system. See Koch

Decl. ¶ 7 (explaining that “[p]rudence dictates that an agency take appropriate

counterintelligence and security precautions to minimize the potential damage to national

security that could result from a spy in the agency’s midst or the compromise of its information

systems by technical means[, a policy that t]he CIA implements . . . by decentralizing and

compartmenting its records systems”). The CIA also “limits employee access to information by

employing a ‘need-to-know’ policy, which provides that an employee has access only to that

information required to perform the employee’s duties.” Koch Decl. ¶ 8. Although that system

of organization has obvious “counterintelligence advantage[s],” “one disadvantage is . . . inherent

inefficiencies created in the records search and retrieval processes.” Koch Decl. ¶ 9. Thus, the

CIA’s FOIA processing necessarily will be more laborious than an agency with a centralized

records system or without a counterintelligence mission.

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The number of requests comprising an agency’s FOIA docket, moreover, reveals nothing

about the complexity of the search necessitated by a request.2 “Plaintiff’s request, which entails

records searches within components of the Directorate of Intelligence, the independent offices

known as the D/CIA area, and the National Clandestine Service (formerly the Directorate of

Operations) as well as Information Management Services, will require the coordination with

multiple components . . . .” Koch Decl. ¶ 23. Such coordination is “laborious and time

consuming.” Koch Decl. ¶ 13. Plaintiff’s contrary claim is not only unsubstantiated but

contradicted by the CIA’s supporting declaration. Compare Pl. Resp. at 6 (suggesting that

“because the volume of documents likely to be found in response to CREW’s discrete FOIA

request will be limited, it does not appear that CREW’s FOIA request is an appropriate one for

CIA’s complex track”) with Koch Decl. ¶¶ 11-14, 22, 37 (describing the difficulty of records

searches across multiple directorates). Thus, that claim is insufficient to rebut the CIA’s

demonstration of exceptional circumstances. See Electronic Frontier Foundation, 2007 WL

1334973, at *4 (“When considering a request for an Open America stay, ‘[a]gency affidavits are

accorded a presumption of good faith, which cannot be rebutted by purely speculative

claims . . . .’”).

2
Plaintiff notes that a GAO study reported that “[t]he CIA’s docket of FOIA requests
received in Fiscal Year 2005 was 2,935, as compared to . . . DHS with 163,016 FOIA requests
received.” Pl. Resp. at 5 n.2. However, the vast majority of the DHS requests were submitted to
the U.S. Citizenship & Immigration Services and therefore likely sought discrete files concerning
a particular individual’s immigration matter. See GAO Report at 65.

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II. THE CIA HAS DEMONSTRATED DUE DILIGENCE IN PROCESSING FOIA

REQUESTS ON A FIRST-IN, FIRST-OUT BASIS.

Plaintiff contends that the CIA’s adherence to a first-in, first-out system for processing

FOIA requests does not excuse it “from the twenty-day timetable.” Pl. Resp. at 7 (erroneously

accusing the CIA of “creat[ing] its own set of FOIA regulations that allow it to process FOIA

requests based on its ‘as soon as we can’ time-table”). In this Circuit, however, courts have

interpreted the “exceptional circumstances” provision as “excusing any delays encountered in

responding to a request as long as the agencies are making a good faith effort and exercising due

diligence in processing the requests on a first-in first-out basis.” Kuffel v. United States Bureau

of Prisons, 882 F. Supp. 1116, 1127 (D.D.C. 1995); see also Appleton v. Federal Drug Admin.,

254 F. Supp. 2d 6, 9 (D.D.C. 2003) (same); Jimenez v. Federal Bureau of Investigation, 938 F.

Supp. 21, 31 (D.D.C. 1996) (same). Tellingly, the only authority Plaintiff cites in support of its

argument comes from outside this Circuit. See Pl. Resp. at 7 (citing Fiduccia v. United States

Department of Justice, 185 F.3d 1035 (9th Cir. 1999)). That case, moreover, involved an eight-

year stay and thus hardly demonstrates that the stay requested here is unwarranted. See id. at

1041 (vacating eight-year stay because “[t]elling the requester ‘You’ll get the documents 15, or

eight, years from now’ amounts as a practical matter in most cases to saying ‘regardless of

whether you are entitled to the documents, we will not give them to you’”).

Here, in contrast, the CIA seeks only an additional three months from the date of this

filing to process Plaintiff’s FOIA request. The record certainly supports that length of stay. In

each of the “last nine years,” the CIA has reduced its backlog of FOIA requests. Koch Decl. ¶

28. The CIA additionally has reduced “the time it takes to process the[m ] as well.” Koch Decl.

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¶ 29. Over a five-year period, the CIA reduced the median days pending for FOIA requests from

605 days to its current level of 234 days. See Koch Decl. ¶ 29. At the time that Plaintiff’s

February 15, 2007 request was submitted, the CIA “had over 907 FOIA requests in various stages

of processing; of these, approximately 573 [] remain ahead of [P]laintiff’s request.” See Koch

Decl. ¶ 35. “Based upon the request, the manner and level of the records search, the nature of

potentially responsive documents, and the careful, multi-step review the CIA must conduct to

prevent the inadvertent release of classified national security or other exempt information, and

relative placement in the processing queue, [the CIA’s] best estimate is that [it] will be able to

complete processing [Plaintiff’s] request by October 2007.” Koch Decl. ¶ 37. On these facts –

none of which Plaintiff disputes – the requested stay is clearly warranted.

III. PLAINTIFF’S RUSH TO COURT WITHOUT FIRST ATTEMPTING TO

ARRANGE AN ALTERNATIVE TIMETABLE FOR PROCESSING ITS FOIA
REQUEST IS A FACTOR SUPPORTING THE REQUESTED STAY.

Plaintiff urges this Court to ignore Plaintiff’s failure to arrange an alternative timetable

for processing its FOIA request. See Pl. Resp. at 7-9. The FOIA, however, requires

consideration of that conduct in determining whether exceptional circumstances exist. See 5

U.S.C. § 552(a)(6)(C)(iii) (“Refusal by a person to reasonably modify the scope of a request or

arrange an alternative time frame for processing a request (or a modified request) . . . after being

given an opportunity to do so by the agency to whom the person made the request shall be

considered as a factor in determining whether exceptional circumstances exist for purposes of

this subparagraph.” (emphasis added)). Plaintiff cannot seriously dispute that it was afforded

such an opportunity. Indeed, evidence of such is attached as an exhibit to Plaintiff’s Response.

See Pl. Resp. Ex. A (Letter to Anne L. Weismann from Scott Koch). That letter advised Plaintiff

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that it was “unlikely that we can respond within the 20 working days the FOIA requires,” that the

“more practical approach would permit us to continue processing your request and respond to

you as soon as we can,” and that “[w]e will proceed on that basis unless you object.” See Pl.

Resp. Ex. A (emphasis added). Plaintiff’s next opportunity was the May 31, 2007 meet-and-

confer during which “counsel discussed whether the parties could agree to the stay,” but

“Plaintiff’s counsel indicated that plaintiff intends to oppose defendant’s motion for a stay.”3

Joint Status Report (filed June 14, 2007). While completely ignoring the latter, Plaintiff offers

only flimsy arguments for why the former did not constitute an opportunity to arrange an

alternative time frame.

Plaintiff erroneously suggests that the CIA’s use of a letter template somehow negates the

express language in the March 13, 2007 letter. See Pl. Resp. at 8. That letter, however, was

addressed to CREW’s chief counsel, described the information sought in Plaintiff’s request, and

therefore clearly directed CREW to communicate to the CIA any objection to its processing that

request “as soon as we can.” See Pl. Resp. at 8 (suggesting that, notwithstanding that language,

the March 13, 2007 was “hardly an appeal to CREW to work with the CIA”). Incredibly,

Plaintiff further suggests that, even if that language properly is deemed such appeal, Plaintiff

could not avail itself of that opportunity because “the CIA’s letter to CREW contained no

telephone number or address for CREW to call or make an appeal for purposes of ‘discussing the

more practical approach.’” Pl. Resp. at 8. Yet, just weeks before receiving that letter, CREW

3
Plaintiff arguably had a third opportunity after Defendant filed the instant motion and it
became clear that the CIA was seeking a stay only until November 1, 2007. See Pl. Resp. at 7-8
(complaining that CREW was not “advise[ ] about [the CIA’s] intention to fulfill CREW’s FOIA
request by October 2007”).

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successfully transmitted to the CIA by facsimile and first-class mail the FOIA request at issue

here. See Compl. Ex. A. (Transmission Verification Report); Compl. Ex. B (Letter from Scott

Koch to Anne Weismann) (acknowledging receipt of CREW’s February 15, 2007 FOIA request).

Thus, CREW’s subsequent failure to contact the FOIA coordinator concerning the timetable for

processing that request clearly cannot be attributed to the omission of his contact information

from the March 13, 2007 letter. Rather, that failure is precisely the type of conduct that “shall be

considered” in determining whether exceptional circumstances exists and that here, supports

granting the requested stay. See 5 U.S.C. § 552(a)(6)(C)(iii).

IV. PLAINTIFF’S ALTERNATIVE REQUEST FOR PRODUCTION ON A ROLLING

BASIS “UP TO AND INCLUDING OCTOBER 2007" IS NOT PRACTICABLE.

Plaintiff’s alternative suggestion of a rolling production ignores its request’s proper place

in the CIA’s FOIA queue. Such a production would require the CIA to move Plaintiff’s request

to the front of the line. In the absence of a compelling need, the law does not require that. See

Open America v. Watergate Special Prosecution Force, 547 F.2d 605, 610 (D.C. Cir. 1976)

(noting that “[i]f everyone could go to court when his request had not been processed within

thirty days, and by filing a court action automatically go to the head of the line at the agency, we

would soon have a listing based on priority in filing lawsuits”); Jimenez, 938 F. Supp. at 32

(noting that a “plaintiff must wait his turn in having the requested documents processed and

disclosed”); 32 C.F.R. § 1900.34.

Moreover, an earlier rolling production risks inadvertent disclosure of exempt

information. See Koch Decl. ¶ 16. In conducting document searches for FOIA requests such as

Plaintiff’s, “reviewers consider all responsive documents in total.” Koch Decl. ¶ 16. A

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particular document “considered individually . . . may not indicate on its face that it contains

exempt information;” however when “considered collectively,” “it frequently becomes apparent

that . . . the documents reveal information exempt from release.” Koch Decl. ¶ 16. “[A]n error

on the part of the CIA that leads to the disclosure of [] exempt information . . . could reasonably

be expected to damage this country’s national security.” Koch Decl. ¶ 18. Consequently, the

CIA “cannot make final release determinations with respect to any particular document until [it]

review[s] all responsive documents.” Koch Decl. ¶ 16. Plaintiff’s belated alternative timetable

is therefore simply not workable.

CONCLUSION

For the foregoing reasons and those explained in Defendant’s Motion for Open America

Stay, Defendant respectfully requests that the Court grant this motion and stay this action until

November 1, 2007 to allow the CIA sufficient time to process Plaintiff’s FOIA request.

Dated: August 6, 2007 Respectfully submitted,

PETER D. KEISLER
Assistant Attorney General,
Civil Division

JEFFREY A. TAYLOR
United States Attorney

JOHN R. TYLER
Senior Trial Counsel
Federal Programs Branch

/s/ Jacqueline Coleman Snead

JACQUELINE COLEMAN SNEAD
(D.C. Bar No. 459548)
Trial Attorney
United States Department of Justice
Civil Division, Federal Programs Branch

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20 Massachusetts Avenue N.W., Room 7214

Washington, D.C. 20530
Tel.: (202) 514-3418
Fax: (202) 616-8470
Email: jacqueline.snead@usdoj.gov

Attorneys for the Central Intelligence

Agency

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CERTIFICATE OF SERVICE

I hereby certify that on August 6, 2007, a true and correct copy of the foregoing Reply in

Support of Defendant’s Motion for Open America Stay was electronically filed through the U.S.

District Court for the District of Columbia Electronic Document Filing System (ECF) and that

the document is available for viewing on that system.

/s/ Jacqueline Coleman Snead

JACQUELINE COLEMAN SNEAD